Citation Nr: 0026943
Decision Date: 10/10/00 Archive Date: 10/19/00
DOCKET NO. 95-12 392 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to service connection for chronic migraine
headaches.
2. Entitlement to an evaluation in excess of 10 percent for
pes planus, an evaluation in excess of 10 percent each for
chondromalacia of the left and right knee, and an evaluation
in excess of 20 percent for postoperative residuals of an
umbilical hernia.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The appellant and his wife
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service from October 1976 to October
1980 and from November 1981 to June 1990.
The claim which has been recognized as being the initial
claim for the benefits at issue was received on February 8,
1993. By rating action dated in April 1994 the Department of
Veterans Affairs (VA) denied entitlement to service
connection for chronic migraine headaches and a back
disability and granted service connection for pes planus,
bilateral chondromalacia and an umbilical hernia, each rated
noncompensable. The veteran appealed from those decisions.
In December 1996 the veteran and his wife testified at a
hearing before a member of the Board of Veterans' Appeals
(Board). In January 1997 the Board remanded the case to the
regional office for further action.
In a November 1999 rating action the regional office granted
service connection for a low back disability. Thus, the
issue of service connection for a back disability is no
longer in an appellate status. The regional office confirmed
and continued the denial of service connection for migraine
headaches. The regional office increased the evaluation for
the veteran's pes planus to 10 percent and assigned
10 percent evaluations each for chondromalacia of the
veteran's left and right knees. The regional office also
increased the evaluation for the umbilical hernia residuals
to 20 percent. All of the increases were made effective
February 8, 1993, the date of receipt of his initial claim.
The case is again before the Board for further appellate
consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.
2. The veteran's service medical records reflect that he
complained of headaches related to traumatic episodes on
several occasions during service.
3. On a VA examination in May 1997 probably tension
headaches was diagnosed, with migraine headaches a
possibility. The examiner reviewed his service medical
records and concluded that it was very unlikely that his
current headaches were related to service. In January 1998
migraine headaches were diagnosed, but not related to
service.
4. There is no reasonable probability that the veteran's
currently diagnosed migraine headaches are related to his
active military service.
4. The veteran currently has tender plantar fasciae with
calluses. His feet are flat without valgus or pronation and
he has a normal gait.
5. The veteran's pes planus is productive of no more than
moderate functional impairment.
6. Range of motion of the veteran's knees is from 0 degrees
to 150 degrees with crepitation but no heat or instability.
He has mild degenerative arthritis and complains of pain
involving both knees.
7. The veteran's knee disabilities are each productive of no
more than moderate functional impairment.
8. The veteran has had surgery for an umbilical hernia. He
currently has no hernia, but does have a slight bulge to the
left of the umbilical ring which is reducible. It causes
some abdominal discomfort and some weakness.
CONCLUSIONS OF LAW
1. Service connection for migraine headaches is not in order
as there is no reasonable probability that his currently
diagnosed headache disability began in service or is related
to any incident during service. 38 U.S.C.A. §§ 1131, 5107
(West 1991); 38 C.F.R. § 3.303 (1999).
2. Evaluations in excess of 10 percent for the veteran's pes
planus, 10 percent each for his right and left knee
disabilities and in excess of 20 percent for postoperative
residuals of an umbilical hernia are not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
Codes 5276, 5010-5257, 7339 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that it has found the veteran's claims are
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); effective on and after September 1, 1989. That
is, the Board finds that he has presented claims which are
plausible. The Board is also satisfied that all relevant
facts regarding the claims have been properly developed.
I. The Claim for Service Connection for Chronic Migraine
Headaches.
The veteran's service medical records reflect that he was
seen in January 1986 for a rash on his legs and headaches for
several days. The headaches were on the left side of his
head. There was no aura, and he was not photophobic. His
throat was red and he had diffuse wheezing in the lungs.
Asthma was to be ruled out. In November 1986 he was seen for
complaints including frontal headaches which began that
morning. He had nasal congestion and rhinorrhea and was
evaluated as having a sinus condition. In July 1987 he was
seen for a deep aching pain in his ears. He had no
complaints of headaches, throat or abdominal pain. The
assessment was bilateral media/externa. On a medical history
form completed by the veteran at the time of a physical
examination in December 1987 he reported that he had, or had
had, chronic or frequent colds, frequent or severe headaches
and dizziness or fainting spells. These complaints were
evaluated and it was noted that his headaches occurred once a
week and were relieved after a half hour with aspirin. On
clinical evaluation no pertinent abnormality was noted.
An emergency treatment note of November 1988 shows he was
seen for various injuries related to an assault by his wife
including being hit in the forehead with a shoe, which
resulted in a contusion. A similar note of December 1988
shows he was seen for a pain in the head of 45 minute
duration. He reported he had been in good health until
September when he was struck on the head with a telephone by
his wife. He had had several episodes of prior head trauma
but had a constant headache on the right side and back of his
head since September. The assessment was chronic headaches.
A consultation report from the neurology clinic in January
1989 indicated that the veteran had headaches daily. The
impression was non focal post-traumatic headaches. In
December 1989 the veteran was seen for treatment of headaches
following a car accident. He had sustained trauma to the
head and a loss of consciousness. The assessment was post-
concussion syndrome. When the veteran was examined for
separation from military service in January 1990 the
neurological examination was normal.
In February 1993 the veteran submitted a claim for service
connection for a hernia and a cyst. He later amended the
claim to include service connection for migraine headaches.
During a hearing before the Board in December 1996 the
veteran testified that he had initially had problems with
migraine headaches during service and that he continued to
have problems with headaches.
When the veteran was afforded a VA examination in May 1997 he
reported that he had problems with headaches occurring 3 or 4
times a week. They were on the sides and back of the head
and lasted for 5 to 7 minutes. They were pulsating. There
was no aura or vomiting. There might be nausea. He took
Tylenol for the headaches.
On examination the pupils were probably equal and probably
reacted to light. His extra-ocular muscles were normal
without nystagmus or diplopia. The funduscopic examination
showed no retina visible on the right, probably due to a
cataract. On the left the disc was sharp and there were no
hemorrhages or exudates. Visual fields were full to
confrontation. The diagnoses included headaches which were
considered probably tension headaches although migraine was
possible. The examiner indicated that since the veteran's
discharge from service he had had CT scans in 1993 and 1997
that were negative. He also noted that the records showed
that the inservice head injury had cleared entirely and no
headaches were noted at the time of the veteran's discharge
from service. Those factors made it seem very unlikely that
the veteran's current headaches could be in any way service
related.
The veteran was afforded a VA neurological examination in
January 1998. It was indicated that he had been struck on
the head on two occasions in service. He had a CAT scan done
recently at the VA hospital that was negative. He had
pounding bilateral headaches that involved the frontal,
vertical and occipital areas. There was no aura. They
occurred 2 or 3 times a week. The diagnosis was migraine
without aura.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by peacetime
service. 38 U.S.C.A. § 1131.
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
In this case, the veteran's service medical records reflect
that he was observed on a number of occasions with complaints
of headaches, generally related to head trauma he had
sustained. The headaches were never evaluated as a chronic
disability or of the migraine type. During the December 1996
Board hearing, the veteran testified that he had had problems
with migraine headaches during service, but that recollection
is inconsistent with the medical evaluations in service.
Headaches, probably tension headaches, but possibly migraine
type, were diagnosed on a VA examination in May 1997. That
examiner, after review of the veteran's medical history
expressed an opinion that it unlikely that the veteran's
current headaches could be in any way service related. A
subsequent neurological evaluation in January 1998
established that they were migraine headaches, but did not
relate them to the noted episodes of head trauma in service.
The medical evidence of record is consistent and reflects
that although the veteran was seen on several occasions of
headaches, they were generally related to traumatic incidents
or illnesses. The diagnosis of migraine type headaches was
not entertained, and post-service review of the records has
led to the opinion that the symptoms shown in service were
not related to his post service diagnosis of migraine
headache. This evidence is contradicted only by the
veteran's recent testimony and recollections, unsupported by
any corroborating medical or lay information. Accordingly,
it follows that entitlement to service connection for chronic
migraine headaches is not in order. 38 U.S.C.A. § 1131. The
objective evidence of record is simply not weighed in the
veteran's favor; nor is it evenly balanced so that a
determination in his favor would be possible. 38 U.S.C.A.
§ 5107.
II. The Claim for an Evaluation in Excess of 10 Percent for
Pes Planus.
The veteran's service medical records reflect that when he
was afforded a physical examination in December 1987 a
notation of pes planus was made with no findings set forth.
Service connection has been established for pes planus, and
the disability is rated as 10 percent disabling.
During the December 1996 Board hearing, the veteran related
that his feet became flat while he was aboard ship. He did
not have any inserts but soaked his feet in hot water or
Epson Salts. He did not use special shoes and wore regular
boots at work, which was quite strenuous; involving a lot of
walking. He could walk about one-eighth or a quarter of a
mile before his feet and knees began hurting him. He was
currently employed as a security guard.
When the veteran was afforded VA examinations in May 1997
flat feet with calluses suggestive of poor mechanical
function were described. He stated that his feet were
painful all the time. He took extra-strength Tylenol, 1 or 2
per day and nothing else. Inserts were of no help. He could
walk one block but after that he had pain. He was able to
deep knee bend and hop on both feet and heel and toe walk
relatively easily. He had pain on those maneuvers. His feet
were 100 percent on the floor. Range of motion of the ankles
and toes appeared to be normal and his gait appeared to be
normal. He had calluses over the 2nd and 3rd metatarsal on
each foot. X-ray studies showed a borderline hallux valgus
defect on the left foot. There were no significant right
foot findings.
The veteran was afforded another VA examination in January
1998. He reported daily foot pain. His feet were flat.
Inserts were of no help. He had tender plantar fasciae. The
metatarsophalangeal joints bilaterally dorsiflexed and
plantar flexed to 45 degrees without much visible discomfort.
His right ankle ranged from 0 degrees to 35 degrees of
plantar flexion with 70 degrees of inversion on the right.
On the left flexion ranged from 0 degrees to 45 degrees with
70 degrees of inversion. There was some discomfort on
plantar flexion of the right ankle. The veteran worked daily
without missing. His gait appeared normal. There were two
calluses about 1.5 inches in diameter over the third
metatarsophalangeal joint. He feet were flat on the floor
but were without valgus or pronation. The Achilles tendons
were straight up and down. There was no hallux valgus except
on X-ray study. The diagnosis was flat feet with plantar
fasciitis.
A 10 percent evaluation is warranted for moderate acquired
flatfoot with weight bearing line over or medial to the great
toe, inward bowing of the Achilles tendon and pain on
manipulation and use of the feet with the condition bilateral
or unilateral. A 20 percent evaluation is warranted for
unilateral flatfoot when the condition is severe with
objective evidence of marked deformity (pronation abduction,
etc.) pain on manipulation and use accentuated, indication of
swelling on use and characteristic callosities. A 30 percent
evaluation is provided for severe bilateral flatfoot.
38 C.F.R. Part 4, Code 5276.
In this case, the record reflects that the veteran complains
of daily pain involving his feet and the VA examination has
disclosed tender plantar fasciae. He also has calluses over
the third metatarsophalangeal joints of the feet. However,
his gait is normal. Although his feet are flat on the floor,
there is no valgus or pronation. Thus, the objective
findings are consistent with those required for a 10 percent
evaluation, but inconsistent with those specified for a
higher evaluation. Furthermore the evidence of record does
not describe manifestations of the veteran's pes planus which
would be productive of more than moderate functional
impairment and as such would not warrant entitlement to an
evaluation in excess of 10 percent under the provisions of
Diagnostic Code 5276.
III. The Claims for Evaluations in Excess of 10 Percent Each
for Chondromalacia of the Left knee and Chondromalacia of the
Right Knee.
When the veteran was afforded the May 1997 VA orthopedic
examination he reported problems with his knees. He stated
that they would grind often, especially the left knee. There
was no current swelling although he had had swelling in
service. He took Tylenol.
On examination deep knee bending, heel and toe walking and
hopping on both feet were without visible pain although the
veteran verbalized discomfort. He arose from the chair in
the waiting room without using his hands but did lurch some
forward. Babinski, Oppenheim and ankle clonus were negative.
Straight leg raising test was negative. He was able to take
his shoes and pants off while in a standing position although
he used one hand to balance on the sink. He was somewhat
slow in getting onto the table but he did not seem especially
uncomfortable. He was able to go from the supine to the
sitting position and to have his knee jerks performed without
much assistance from his hands. His knee jerks and ankle
jerks were 2/2. Range of motion of the knees was from 0
degrees to 150 degrees without visible pain on abduction,
adduction or anterior/posterior drawer bilaterally. There
was no swelling and only minimal or no crepitus. There was
no visible pain or verbal pain on patellofemoral grind. The
veteran denied having any locking in his knees. X-ray
studies showed very minimal degenerative lipping of both
knees at the posterior/inferior pole of either patella.
There was no compartment narrowing or effusion. The
diagnosis was minor knee pain. The examiner commented that
the veteran might have chondromalacia involving the knees but
the knees moved normally.
When the veteran was afforded the January 1998 VA orthopedic
examination he complained that both knees were painful. He
was not taking any medication but just attempted to stay off
of his feet. His knee conditions were better prior to
working and worse after he worked. He did not use canes or
crutches. He had walked on ladders on ships in the Navy and
still did that. He was a security officer and had missed no
time from work.
Range of motion of the knees was from 0 degrees to 150
degrees. There was moderate to marked crepitus bilaterally
and minimal visible discomfort on full flexion. There was no
visible discomfort or instability on abduction, adduction or
anterior/posterior drawer sign testing. Walking and climbing
stairs as a security guard increased his pain. Deep knee
bending was to 50 percent due to knee pain. Heel and toe
walking were all right. Hopping on both feet 10 times caused
knee pain. X-ray studies of the knees showed minor
degenerative changes. There was no evidence of articular
narrowing and no bony deformities. The diagnosis was
degenerative joint disease of the knees with the left being
greater than the right.
Arthritis due to trauma, substantiated by X-ray findings, is
rated as degenerative arthritis. 38 C.F.R. Part 4, Code
5010.
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. When the limitation of motion of the specific
joint or joints involved is noncompensable under the
appropriate diagnostic codes, an evaluation of 10 percent is
applied for each major joint or group of minor joints
affected by limitation of motion. These 10 percent
evaluations are combined, not added, under Diagnostic
Code 5003. Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm or
satisfactory evidence of painful motion. 38 C.F.R. Part 4,
Code 5003.
Slight impairment of either knee, including recurrent
subluxation or lateral instability, warrants a 10 percent
evaluation. A 20 percent evaluation requires moderate
impairment. 38 C.F.R. Part 4, Code 5257.
In this case, the evidence reflects that the veteran
complains of pain involving his knees and the most recent VA
orthopedic examination showed moderate to marked crepitation
involving the knees. However, there was no limitation of
motion of his knees and no heat or instability of the knees.
Although degenerative arthritis was shown on X-ray study,
that condition was described by the examiner as minor in
nature. The functional impairment resulting from his pain is
relatively slight in degree as he is able to work full-time
at a job which requires extensive walking and even climbing.
Accordingly, under the circumstances, the Board concludes
that each knee condition is productive of no more than slight
impairment and as such would not warrant entitlement to an
evaluation in excess of 10 percent for either knee under the
applicable diagnostic codes.
The Board notes that in the case of DeLuca v. Brown, 8 Vet.
App. 202 (1995), the United States Court of Appeals for
Veterans Claims held that consideration must be given to
functional loss due to pain under 38 C.F.R. § 4.40 and
functional loss due to weakness, fatigability, incoordination
or pain on movement of a joint under 38 C.F.R. § 4.45 when
evaluating orthopedic disabilities. The VA examinations have
disclosed some knee pain, a slight functional impairment as
well as crepitation and minor degenerative arthritis and
those findings have been considered by the Board in
evaluating the degree of severity of the veteran's bilateral
knee condition. However, there was no indication of any
functional loss due to weakness, fatigability or
incoordination. Accordingly, for the reasons already
discussed, the Board concludes that an evaluation in excess
of 10 percent each for the veteran's right and left knee
disabilities is not warranted.
IV. The Claim for an Evaluation in Excess of 20 Percent for
Postoperative Residuals of an Umbilical Hernia.
The veteran's service medical records reflect that he had an
umbilical hernia repair in 1989.
The veteran was hospitalized by the VA in September 1993 with
a complaint of a persistent periumbilical pain with an
intermittent bulge. A repair of a recurrent umbilical hernia
was performed.
The veteran was afforded a VA gastrointestinal examination
later in September 1993. There was a 4-centimeter repaired
umbilical hernia with the sutures still in place. The
diagnosis was recurrent umbilical hernia.
By rating action dated in April 1994 service connection was
granted for postoperative residuals of an umbilical hernia,
and that condition is currently rated as 20 percent
disabling.
During the December 1996 hearing before the Board, the
veteran testified that his primary problem was with his
hernia.
The veteran was again afforded a VA gastrointestinal
examination in May 1997. He complained of intermittent pain
2 to 3 times a week. On abdominal examination, there was no
hernia palpated at rest. The umbilicus appeared somewhat
scarred and enlarged. The abdomen was not distended. There
was pain on bearing down and a slight bulge to the left of
the umbilical ring with bearing down. The examiner commented
that the hernia appeared to be entirely reducible.
On another VA gastrointestinal examination in January 1998 he
complained of discomfort in the periumbilical region. He had
some nausea but no vomiting. On examination there was a .5-
centimeter area near the umbilicus, perhaps 1/2 inch from it,
that was prominent and which did not change with bearing down
and which had not changed in size since the previous
examination. The diagnosis was periumbilical nodule of
uncertain nature.
A 20 percent evaluation is warranted for a small
postoperative ventral hernia which is not well supported by a
belt under ordinary conditions or a healed ventral hernia or
a postoperative wound with weakening of the abdominal wall
and indications for a supporting belt. A 40 percent
evaluation requires a large ventral hernia which is not well
supported by a belt under ordinary conditions. 38 C.F.R.
Part 4, Code 7339.
In this case, the record reflects that the veteran has
complained of intermittent pain at the site of the umbilical
hernia repair and the examination disclosed a mild bulge with
bearing down at the left edge of the umbilical ring. When
the veteran was most recently examined in January 1998 the
examiner indicated that the bulge or nodule was of an
uncertain nature. Furthermore, the bulge or nodule was small
and readily reducible. There are no indications for a
supporting belt. Accordingly, under the circumstances, it
follows that the criteria for the next higher evaluation of
40 percent under Diagnostic Code 7339 for the postoperative
residuals of the veteran's umbilical hernia have not been
met.
The Board notes that in the case of Fenderson v. West, 12
Vet. App. 119 (1999), the United States Court of Appeals for
Veterans Claims indicated that there was a distinction
between a veteran's initial dissatisfaction with the initial
rating assigned following a grant of service connection and a
claim for an increased rating of a service-connected
condition. The Court noted that the distinction might be
important in terms of, among other things, determining the
evidence that could be used to decide whether the original
rating on appeal was erroneous. The Court indicated that the
rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994)
("Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance."), was not applicable to the assignment of an
initial rating for a disability following an initial award of
service connection for that disability. The Court indicated
that, at the time of an initial rating, separate ratings
could be assigned for separate periods of time based on the
facts found--a practice known as "staged" ratings. The
medical evidence of record in this case indicates that the
veteran's conditions have not changed significantly since the
initial rating and thus possible staging of the ratings under
Fenderson is not for consideration.
The Board has carefully reviewed the entire record with
regard to the veteran's claims for increased ratings for the
disabilities at issue; however, the Board does not find the
evidence to be so evenly balanced that there is doubt
regarding any material matter regarding any of those issues.
38 U.S.C.A. § 5107.
ORDER
Entitlement to service connection for chronic migraine
headaches is not established.
Entitlement to an evaluation in excess of 10 percent for pes
planus, an evaluation in excess of 10 percent each for the
veteran's right and left knee disabilities, and an evaluation
in excess of 20 percent for postoperative residuals of an
umbilical hernia is not established.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals